Hawthorne et al v. Wal-Mart Stores East, LP
OPINION and ORDER Granting Defendant's Motion for Summary Judgment 64 . Signed by District Judge Laurie J. Michelson. (EPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 18-12628
Honorable Laurie J. Michelson
WAL-MART STORES EAST, LP,
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT 
Angela Hawthorne slipped and fell on a wet floor at a Wal-Mart in Howell,
Michigan. Hawthorne alleges that she injured her wrist and back in the fall. She sued
Wal-Mart for premises liability, nuisance, and negligence under Michigan law. In its
motion for summary judgment, Wal-Mart argues it is entitled to judgment as a
matter of law on all of Hawthorne’s claims. The Court agrees.
Angela Hawthorne was shopping in the Howell, Michigan Wal-Mart with her
husband Robert on August 24, 2017. (ECF No. 10, PageID.67.) Hawthorne was
pushing a shopping cart down the “main action alley” of the store when she suddenly
slipped on a clear liquid on the floor. (Id.; ECF No. 66.) Hawthorne was able to hang
on to the cart with both hands but fell to her knees and twisted her left leg. (ECF No.
64-1, PageID.729–730.) Hawthorne reported being in shock and feeling pain in her
neck, back, legs, and arm. (Id. at PageID.731.) Hawthorne was able to stand up with
the help of her husband. (Id. at PageID.734–735; ECF No. 66.) Wal-Mart employees
immediately came over to check on Hawthorne. (ECF No. 64-1, PageID.735.) The
employees had difficulty locating the spill on the floor, but eventually found it and
cleaned it up. (Id. at PageID.736.) The liquid on the floor was clear so it was difficult
to see on the light-colored floor. (ECF No. 64-1, PageID.738, 741.) Hawthorne testified
that she did not know how the substance got there or how long it was on the floor.
(ECF No. 64-1, PageID.739.) Hawthorne reports that she did not see anything out of
the ordinary before she suddenly fell. (ECF No. 64-1, PageID.733.)
Hawthorne and her husband submitted a written report of the incident, paid
for their groceries, and went home. (Id. at PageID.735–736, 743.)
Hawthorne reports that she was in a lot of pain when she got home and made
an appointment with her primary care doctor a few days later. (ECF No. 64-1,
PageID.744–745.) Over the next several months, she sought treatment for her
injuries from a number of doctors. (ECF No. 64-1, PageID.746–748, 680–684.)
Hawthorne reports that she still suffers symptoms from her injuries that prevent her
from returning to her level of activity before the fall. (ECF No 64-1, PageID.853.)
In June 2018, Hawthorne and her husband sued Wal-Mart in state court. (ECF
No. 1-2.) Wal-Mart removed the case to federal court based on diversity jurisdiction.
(ECF No. 1.) Plaintiffs later agreed to voluntarily dismiss Robert Hawthorne’s
consortium claim, leaving Angela Hawthorne’s three counts against Wal-Mart. (ECF
No. 18.) Wal-Mart now moves for summary judgment on all counts. (ECF No. 64.)
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56. “A fact is material only if its resolution will affect
the outcome of the lawsuit.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451–
52 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
And “a dispute about a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Scott v. First S.
Nat’l Bank, 936 F.3d 509, 516 (6th Cir. 2019) (internal citations omitted).
Wal-Mart first argues that it is entitled to summary judgment on Hawthorne’s
premises liability claim because she has failed to come forward with any evidence
that Wal-Mart had notice of the slippery floor.
“In a premises liability action, a plaintiff must prove the elements of
negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached
that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the
plaintiff suffered damages.” Buhalis v. Trinity Continuing Care Servs., 822 N.W.2d
254, 258 (Mich. Ct. App. 2012) (internal quotation omitted).
As a customer at a Wal-Mart store, Wal-Mart owed Hawthorne “a duty to
exercise reasonable care in order to protect [her] from unreasonable risks created by
dangerous conditions” in the store. Gainer v. Wal-Mart Stores E., L.P., 933 F. Supp.
2d 920, 925 (E.D. Mich. 2013) (citing Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384,
386 (Mich. 2001)).
But to establish a breach of that duty, Hawthorne “must offer admissible
evidence demonstrating that Defendant (i) knew or should have known about the
dangerous condition and the unreasonable risk it created; (ii) should have expected
that invitees would not discover the danger, or would otherwise fail to protect against
it; and (iii) failed to exercise reasonable care to protect its invitees against the
danger.” Gainer, 933 F. Supp. 2d at 925 (citing Bertrand v. Alan Ford, Inc., N.W.2d
185, 186 (Mich. 1995)).
Hawthorne concedes that there is no evidence that Wal-Mart created the spill
or knew about it before Hawthorne’s fall. (ECF No. 64-1, PageID.739–741.) In fact,
Hawthorne affirmatively stated at her deposition that Wal-Mart first learned of the
substance on the floor after she fell. (Id. at PageID.742.) So Hawthorne must show
that Wal-Mart had constructive notice of the spill. See Gainer, 933 F. Supp. 2d at 926
(explaining that the prong “knew or should have known” requires showing either the
defendant created the risk or that the defendant had actual or constructive notice of
the risk); see also Ogden v. Target Stores, Inc., No. 06-14555, 2007 WL 4358193, at *4
(E.D. Mich. Dec. 13, 2007) (citing Derbabian v. S & C Snowplowing, Inc., 644 N.W.2d
779, 784–85 (Mich. Ct. App. 2002)).
Hawthorne can establish constructive notice by “presenting evidence that the
hazardous condition was of such a character or ‘ha[d] existed for a length of time
sufficient to have enabled a reasonably careful storekeeper to discover it.’” Gainer,
933 F. Supp. 2d at 932 (quoting Whitmore v. Sears, Roebuck & Co., 279 N.W.2d 318,
320 (Mich. Ct. App. 1979)).
Hawthorne repeatedly testified that the spill was very difficult to see. (ECF
No. 75, PageID.1920; ECF No. 64-1, PageID.733, 738, 741.) So her own testimony
makes clear that the character of the spill would not have enabled a reasonably
careful storekeeper to discover it immediately.
Thus, Hawthorne is left with the option of showing that the substance was on
the floor for a sufficient length of time. Hawthorne argues that she “has established
that the substance has likely been on the floor for over an hour,” and that is sufficient
to show constructive notice. (ECF No. 75, PageID.1919.) This statement is purely
speculation since Hawthorne has made no such showing. Hawthorne’s arguments for
why she believes the substance was on the floor for an hour are unclear and
unpersuasive. Hawthorne notes that the clear liquid was difficult to see on the floor
and that Wal-Mart must have known that any clear spill would be hard to see. (Id. at
PageID.1918.) But this has no relevance to the timing of this particular spill.
“[P]roof of constructive notice requires that the plaintiff come forward with
some evidence supporting at least a reasonable inference that the dangerous
condition was around long enough for the landowner to notice and remedy it.”
Djurovic v. Meijer, No. 351743, 2021 WL 137643 (Mich. Ct. App. Jan. 14, 2021), leave
to appeal denied, No. 162839, 2021 WL 2822039 (Mich. July 6, 2021). Instead, the
record evidence in this case, in particular the Wal-Mart surveillance video, suggests
that the substance was on the floor for only a short period of time before Hawthorne’s
fall. In the one hour before Hawthorne’s fall, the surveillance video does not clearly
show when or how the wet substance ended up on the floor. (ECF No. 66.) But the
video does corroborate Hawthorne’s testimony that there was no obvious spill or other
hazard on the floor at the time of her fall. (Id.) Importantly, the video also shows
approximately 16 people walking directly over the area of the spill in the 12 minutes
before Hawthorne’s fall. (ECF No. 64, PageID.599; ECF No. 66.) None of these people
appear to have any issues walking in that area and none report a hazard to Wal-Mart
employees. (Id.) Hawthorne argues that one shopper appears to notice the substance
on the floor three minutes before Hawthorne’s fall. (ECF No. 75, PageID.1920.) But
assuming that customer did notice a spill at that point, three minutes is not enough
time to establish constructive notice. (And the video does not show the shopper
advising any Walmart employee of a spill.)
These facts are closely analogous to those in a recent Michigan Court of
Appeals case. See Djurovic, 2021 WL 13764, at *2. In Djurovic, the Michigan court
was expressly addressing “whether Meijer had constructive notice of the dangerous
condition on its premises” after plaintiff slipped on water that had collected on the
tile floor. Id. The court concluded that the video showing “multiple people traversing
the precise area of [plaintiff’s] fall without difficulty during the hour before
[plaintiff’s] accident . . . tends to support that the water was not there for very long.”
Id. Like in Djurovic, the Court here concludes that the record evidence cannot support
an inference that the substance was on the floor “long enough for a reasonable
shopkeeper to have noticed and remedied it.” Id.; see also Lowrey v. LMPS & LMPJ,
Inc., 890 N.W.2d 344, 350–51 (Mich. 2016) (holding that plaintiff failed to present any
evidence of constructive notice where people traversed the spot of the alleged hazard
throughout the evening without incident and plaintiff did not present any evidence
as to when the condition arose); Sumerix v. Family Fare, L.L.C., No. 260382, 2006
WL 2060397, at *2 (Mich. Ct. App. July 25, 2006) (granting summary disposition
where there was “nothing in the record to indicate that defendant knew about the
unsafe condition or that the unsafe condition was of such a character or had existed
for such a sufficient length of time that defendant should have had knowledge of it”).
Because Hawthorne has presented no evidence demonstrating that Wal-Mart
knew or should have known about the slippery substance on the floor and the
unreasonable risk it created, Hawthorne’s premises liability claim fails.
Hawthorne’s second claim against Wal-Mart is for public nuisance. A public
nuisance “involves the unreasonable interference with a right common to all members
of the general public.” Sholberg v. Truman, 852 N.W.2d 89, 92 (Mich. 2014). The term
“unreasonable interference” includes “conduct that (1) significantly interferes with
the public’s health, safety, peace, comfort, or convenience, (2) is proscribed by law, or
(3) is known or should have been known by the actor to be of a continuing nature that
produces a permanent or long-lasting, significant effect on these rights.” Cloverleaf
Car Co. v. Phillips Petroleum Co., 540 N.W.2d 297, 300 (Mich. Ct. App. 1995).
Hawthorne argues that the spill was a public nuisance because it significantly
interfered with public health and safety. (ECF No 75, PageID.1924.) But conduct
under the first category must create “a wrongful, continuing, impending danger to
the lives or health of the public.” Ypsilanti Charter Twp. v. Kircher, 761 N.W.2d 761,
777 (Mich. Ct. App. 2008). “The types of individual claims that have been recognized
in the public health category typically involve disposal or release of hazardous
substances or chemicals that present a threat to public health.” Davis v. Wal-Mart
Stores E., LP, No. 18-13901, 2019 U.S. Dist. LEXIS 217956, at *5 (E.D. Mich. Dec. 19,
2019); see also Organic Chemical Site PRP Grp. v. Total Petroleum, Inc., 58 F. Supp.
2d 755, 765 (W.D. Mich. 1999) (release of hazardous chemicals could pose sufficient
threat to public health to constitute public nuisance); Norton Shores v. Carr, 265
N.W.2d 802, 805–06 (Mich. Ct. App. 1978) (business operation that caused black dirt
dust to blow off of property constituted public nuisance). A spill on a Wal-Mart floor
present for a relatively short period of time simply does not rise to the level of a public
nuisance. See Davis, 2019 U.S. Dist. LEXIS 217956, at *6 (hanger on the floor of
Walmart store did not rise to the level of a public nuisance); Fagan v. Speedway, LLC,
No. 15-10211, 2016 WL 2957929, at *4–5 (E.D. Mich. May 23, 2016) (crack in
defendant’s parking lot not a public nuisance).
Hawthorne’s final claim is for common-law negligence. Hawthorne argues that
Wal-Mart was negligent because it “should have inspected its floor for clear
substances which cannot be readily seen or alternatively, warn the invitees to be
aware of liquids spilled on the floor.” (ECF No. 75, PageID.1924.) Under Michigan
law, “[i]f the plaintiff’s injury arose from an allegedly dangerous condition on the
land, the action sounds in premises liability rather than ordinary negligence; this is
true even when the plaintiff alleges that the premises possessor created the condition
giving rise to the plaintiff’s injury.” Buhalis v. Trinity Continuing Care Services, 822
N.W.2d 254, 258 (Mich. Ct. App. 2012). So the Court agrees with Wal-Mart that
Hawthorne’s negligence claim is repetitive of the premises liability claim and likewise
must be dismissed.
For the reasons stated above, Wal-Mart’s motion for summary judgment (ECF
No. 64) is GRANTED. Hawthorne’s case is DISMISSED WITH PREJUDICE.
Dated: July 15, 2021
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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